Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.

Mrs Forrester
v.
Bell

1751, Feb. 26.
Case No. No. 26.

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27th December 1743, Elizabeth Sommerville was married to John Forrester, without any marriage contract, and sometime after he fell ill, and 38th April 1744 executed a bond of provision for his wife on the narrative of the marriage and verbal conditions then agreed on, of 12,000 merks in liferent, in case she survived him, and to the bairns, one or more, to be procreated of the marriage in fee, whom failing, to the wife, and in further security made over his plantation in Jamaica, and in the same event of her survivance made over to her his household furniture, and these provisions are declared to be in satisfaction to her of all terce of lands, half or third of moveables; and it contained a clause dispensing with the not delivery; but no mention was made of his present sickness, or danger of death, and at the same time he consented to a testament executed by her of a poivtion of 5000 merks in favours of certain friends, and he died a few days after. His sister confirmed some few moveables he had in this country, and Bell became cautioner in the confirmation. The relict recovered decreet in absence against the executrix, and then insisted against Bell the cautioner, who alleged, that this being a settlement in contemplation of marriage, became void by the dissolution of the marriage within year and day. Answered, It was no contract of marriage, but a donation mortis causa, being then on deathbed, and given over by his physicians, and he died in a few days, and it contains a clause dispensing with the not delivery, and it was not delivered. It was revocable and alterable, and not a marriage settlement; and 2dly, Though it were, yet parties contractors can dispense with the year and day, and that must be presumed to have been his meanings since he knew he could not live a month instead of seven months. Minto reduced the bond because of the dissolution of the marriage within year and day. And this day we Adhered, sed renit. President, Drummore, Minto, &c. I was for the interlocutor, be cause the bond was plainly in contemplation of the marriage, without the least insinuation of his present sickness, or that the apprehension of death was the causa donandi; on the contrary he provides the fee to children one or more to be procreated; and though it proved eventually that he was on deathbed, yet there was no appearance that he knew or supposed it at the time. And on a reclaiming bill and answers we adhered, 16th July 1751, though the petitioner offered to prove that the physicians had given him oven and that he thought himself dying.